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SC must demonstrate will to correct itself

Harish Salve

This year saw a change in guard — Chief K G Justice Balakrishnan retired in May 2010 after a relatively long term spanning three-and-half years as compared to nine months of Chief Justice Verma, and less than two years of his immediate predecessors (except Justice Anand).

| Jan 1, 2011, 04:13 IST

This year saw a change in guard — Chief K G Justice Balakrishnan retired in May 2010 after a relatively long term spanning three-and-half years as compared to nine months of Chief Justice Verma, and less than two years of his immediate predecessors (except Justice Anand). At the end of 2010 the changing hues of the Supreme Court make an interesting study.
The post-Krishna Iyer Supreme Court defined itself by expanding not just constitutional jurisprudence but also gathering courage to boldly confront problems of accountability or lack of it. It courted controversy taking on cases impinging on political accountability and accountability of the political class under the criminal laws.

The years under the stewardship of Chief Justice Balakrishnan saw a distinct move from a reactive court, sensitive to the need for intervention when the rule of law was compromised, to a conservative court with its doors more closed than ajar to controversial public causes.

The lowest ebb of Chief Justice Balakrishnan's conservative approach is defined by its two judgments in the Lalu Yadav-related cases. The first when (before assuming the office of the Chief Justice) he headed the bench in which concurring with Justice Lakshmanan (Justice Kapadia dissenting) the court dismissed Sushil Modi's attempts to ensure that the politics of coalition does not triumph over the rule of law. A brazen manipulation of the Income Tax Tribunal benches unfortunately got past judicial scrutiny — the court applying the conservative "hands off" doctrine. The results are there for all to see — the Tribunal accepted Lalu's near puerile explanation for unexplained income in a judgment that hardly does credit to that institution.

The second — almost a follow up — was when a bench headed by him (this time as Chief Justice) quashed the state government's attempt to appeal Lalu's acquittal in the unexplained assets case in an appeal by the CBI who chose to bat for the accused. The CBI should have challenged the acquittal as prosecutors normally do but — again a tribute to coalition politics — ended up challenging those who challenged the acquittal. No comments on the merits of the judgment as a review is — I believe — pending consideration.

Chief Justice Balakrishnan's era did see the court engaging in some controversial cases, and deciding some important constitutional issues, but the inevitable perception was that of a conservative court, that was more often than not supportive rather than interrogative of the government!

The change of guard almost always heralds a change in direction, for it is now an accepted and remarkable - phenomena that the persona of the Chief Justice always imbues the court with colour.

Little surprise then that the year ended with sparklers from the court. Three significant interventions mark this change.

The first is the decisive manner in which the court has revived the matter relating to police reforms, taking each state to task for its failure to comply with directions issued to insulate the police force from political interference. The second is the court snubbing the government's attempt to block scrutiny of the credentials of the Chief Vigilance Commissioner. The third is its intervention in the well known 2G scam.

The last symbolises, in a manner of speaking, all that is wrong with our system. It clearly establishes beyond prima facie, the brazenly corrupt methods of decision makers, the helplessness of a honest prime minister in heading a coalition government and the enormous potential for monetary corruption in exercise of discretion. Add to this the possibility that decision making may be influenced by lobbyists who now have access to the sanctum sanctorum.

The credibility of the court has also come under sustained attack as never before some allegations are worthy of concern although for the most they are worthy of scorn. The judges of the High Courts and the Supreme Court work hard and with a great sense of sacrifice, considering the increasingly handsome rewards from the profession. However, the institution is fragile for it cannot risk being anything less than perfect and even its votaries recognise the scope for correction. The strength of the institution lies in its ability to correct itself. It has to demonstrate its will to correct itself as much as it exercises its power to correct others.

The Chief Justice of India and the institution he heads enter the New Year under somewhat extreme weather conditions beyond the unusually cold winter in Delhi and the rest of the world. Parliament faces a potential logjam with its future course uncertain as allegations about corporate India fly fast and thick even if a little truth is embellished with a lot of salacious fiction. Even the court itself is under scrutiny. Once again the beleaguered citizenry looks with one part hope and three parts desperation upon the court to help restore some semblance of values of governance in this circus of Indian democracy.

(The writer is a well known lawyer and a former solicitor general of India)

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